Typically, I address lawyers making a difference in their community, our profession, and among family and friends. Today, I’m going to take a different look from the perspective of litigation outcomes. This discussion was prompted by an article I ran across online in Slate entitled, Do Court Room Lawyers Make a Difference? The premise of that article was a pair of well-known judges debating the importance of attorneys in trial outcomes. The article began with a statement:
Slate is running a series of monthly dialogues between two of the nations’ most esteemed jurists, Richard A. Posner and Jed S. Rackoff. These conversations are moderated by Joel Cohen author of the book Blindfolds Off: Judges on How They Decide.
This discussion is one near and dear to my heart. I was not surprised that these two distinguished jurists reached the conclusion that case results stand on their facts and not upon a particular lawyer’s skills. Please read that discussion as I use it only for an introduction to my topic, which I’m sure will lead to more discussion among lawyers. To be fair, the discussion seems to focus on criminal cases more than civil.
Most trial lawyers I know have a little bit of ego. Seemingly, the more successful the lawyer, the larger the ego. I think many if polled, would disagree with those judges’ view of the effect of lawyers on a case result. Also, these judges did say that in a close case the skill of a lawyer could make a difference. I read with great interest that the average law firm partner now charges well over $500 per hour. I also read an article in the local newspaper quoting an Oklahoma City law firm partner’s rates at $800 per hour to represent a local independent trust authority. This information immediately sent me back to renegotiating fees with clients supporting those requests with claims of superior lawyering skills.
Not surprisingly, those judges believe that the judge has a big role in the jury trial. I was brought along in my practice with the thought that the judges were the unbiased protectors of the law, juries, and justice. Experience, none the less, tells me that some judges believe they have to level the playing field or allow all sorts of advocacy (skilled or not) in order to give the parties equal opportunity for justice to be done. Somehow, that does not square with the idea that the lawyer’s relative skill set is unimportant in more than 90% of results (the not close cases). Moreover, most lawyers I know that do marketing are selling themselves, their trial record, and their skill set to potential clients. A common belief among non-lawyers is that the party with the deepest pockets and most expensive law firm can win or at least delay a negative outcome. Also, the premise of the Slate blog installment seems to fly in the face of those who pay money for titles such as “Best”, “Super”, “Superior Rated”, etc. I regularly hear on the local radio and see on TV, lawyers who include in their advertising recovery amounts for clients in the past and cumulative recovery numbers for all time. Doesn’t all of this marketing infer that the lawyer’s skill makes some difference in the outcome?
I’m not criticizing the judiciary for being hands on, hands off, experienced, or even inexperienced. I have seen trials where judges are ultra-protective of jurors and the civil jury process while others essentially let everything go, allowing the attorneys to build into the case their own error should they dare to cross those lines. But, I do argue that all of these types of judicial conduct, just by the fact they are taking one position or another, lend credence to the point that the lawyer’s skill level does affect outcome.
At the very least, a lawyers negotiating skill can affect settlement terms and amounts. Many cases that result in litigation, began as a client’s failure to engage lawyers at the outset of a transaction or deal. Maybe the contract writing and negotiation skills lawyers have at the time of the transaction will impact the ultimate result. I would ask our ADR professionals their thoughts on the issue but I am betting that they hear too many lawyer value added arguments and war stories intended to influence settlements to argue the point. It seems a common occurrence to overhear a lawyer talk about making something out of nothing or holding the verdict amount down despite everything being against them. Lawyers now even attach their strategies to a successful mentor in hopes of elevating their position based on that mentor’s achievements.
Surely all of this talk is not baseless chest pounding. I simply can’t think of a scenario where the lawyer’s skill level does not impact the outcome. Some skill is certainly required in making and arguing evidentiary objections, presenting testimony, and obtaining a set of jury instructions. I can’t imagine that any judge would allow the use of a defective set of jury instructions; however, many cases I see reversed on appeal are done so on the basis of jury instructions given at trial. Maybe all of this is just ego speak? After all, most clients already know, if you have dragons, you need to use them. But it does not hurt to also have facts, law, and a lawyer who knows their case.
1. Joel Cohen, Richard A. Posner, Jed S. Rakoff; Do Court Room Lawyers Make a Difference?(July 31, 2017), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/07/posner_and_rakoff_debate_whether_courtroom_lawyers_ever_make_a_difference.html
2. Cohen, J. Blindfolds Off: Judges on How They Decide. Chicago: (2014)
Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email email@example.com, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit http://www.hbokc.law.